Recently, I found myself stuck at the courthouse, trapped in an interminable limbo among dozens of other attorneys, each waiting for their turn to be called into chambers for a status conference with the judge on their respective cases. Passing the time, I found myself in conversation with an attorney who I knew in passing from a previous case we had both worked on. The conversation turned to our respective firms and practices. I learned that this gentleman, who was several years younger than me and only a few years removed from law school, had left the small plaintiff’s firm to which he had been previously attached in order to hang out his proverbial shingle, and strike out on his own.
I applauded his initiative, noting that I had never spent time outside the confines of a larger firm. Upon learning that I focus my practice primarily upon legal malpractice defense, he quickly made a comment about how one of the biggest fears he now had was being exposed to claims from dissatisfied clients. He further explained that when he was with his previous firm, he always had a more senior attorney looking over his shoulder, to whom he could turn for help when he had questions about how to best handle the case. He seemed particularly concerned that his relative inexperience would lead to him making a mistake in the substantive portions of the case; that is, failing to apply some nuance of the law, or making a mistake as to an evidentiary rule, etc.
At this point, I felt compelled to offer him some reassurance. I told him that in my experience, legal malpractice claims arising out of situations like the ones he described were rare, and further, because they often turned on the discretionary actions of an attorney, they were often more difficult to prove. I further told him that by far, the most common legal malpractice claims I wound up defending arose out of simple errors in common sense. Further, while these type of claims are often among the hardest to defend, they’re usually the easiest to prevent.
Now, while the idea for this article came out of a conversation I had with a young and relatively green attorney, in no way are these suggestions meant only for those new to the bar. To the contrary, it’s rare that I represent attorney clients of a young age. I think it’s safe to say that applying rules of common sense to daily tasks is a good practice for all attorneys to have, regardless of age.
First, and most important by far, COMMUNICATE. Keeping an open line of constant communication is important in general, but never so important as with your client. So often, I find myself representing clients who simply failed to keep their clients properly informed as to what was happening in a case. A few years back, I represented an attorney who received a settlement demand which he thought was outrageously high (perhaps properly so). The offer was so ridiculously out of proportion to the plaintiff’s injuries that the attorney dismissed it out of hand, failing to bring it to the client’s attention. I’m sure you can guess where this story is going: The case went to trial, with the defendant losing and being hit with a verdict which exceeded the previously scoffed-at settlement demand. Now, this attorney did everything else correctly—put on an excellent case, argued it well, didn’t miss a point. The jury simply went the other way, as juries are wont to do. It’s also exceedingly likely that his client would have rejected the original settlement demand in any regard, and chosen to proceed to trial. However, because this attorney simply failed to communicate effectively with his client, he made himself vulnerable to a malpractice claim.
The core tenet of communication should not be limited to one’s clients, however. Communication with your opposing counsel is often just as critical. For example, for all of the competitiveness which goes on in the legal world, most attorneys tend to practice with a significant degree of professional courtesy. I once had a client who, due to a difficult time in his personal life, found himself unable to keep up with court ordered discovery deadlines, which lead to his client’s case being dismissed. Speaking with his opposing counsel during the investigation of the malpractice claim, I learned that his opponent had no idea my client was having personal difficulties. What’s more, he indicated that he gladly would have consented to extensions of time had he known the reason for the noncompliance, simply out of courtesy to his fellow attorney. Had my client established a friendlier, more collegial dialog with his opponent, he may well have avoided the situation which gave rise to a malpractice suit.
This scenario ties in somewhat to my second common sense principal, CALENDARING. Simply put, maintain a well-tended calendar! It might seem silly, but plenty of legal malpractice suits have arisen from something as simple as a missed deadline. Making sure that each of your cases is calendared in such a way that you’re kept on notice of the important looming deadlines is an easy way to remain focused and on task. I will admit that this is far more difficult for solo practitioners who don’t have support staff, but plenty of attorneys with their own administrative assistants and paralegals still fail to maintain a tidy calendar. Further, just because you’ve got an administrative assistant who adds pertinent dates to your calendar doesn’t let you off the hook. Always remember that your staff is an extension of you: If your admin or paralegal misses something, or makes a mistake, the buck necessarily stops with the attorney. So even if you have someone doing these tasks for you, take time each week to briefly review your calendar to be sure it’s up to date and accurate.
That brings us to our third common sense rule, REVIEW. Review, review, review. Review everything. Review your emails before you send them out. Review your memos before you file them. Absolutely review everything you’re filing with the court, or preparing for a client. In fact, review all of those things multiple times. Even if you’re a seasoned attorney with dozens of years of experience, you’re not immune to simple oversights and typographical errors. While some of these mistakes won’t come back to haunt you (you’re not getting malpracticed for spelling a client’s name wrong in a letter), others certainly can.
To show you what I mean, I had a client several years ago who specialized in wills, trusts and estates. He’d been doing wills for 20+ years, and had the laws, language, and practice down cold. He found himself in a precarious position when a will he’d prepared for a client was found to be invalid upon that client’s passing. My client had prepared the will, along with a power of attorney and a living will, arranged for all the necessary witnesses, and hosted the signing at his office. Somehow, likely due to the multitude of signatures the decedent provided that day, the actual signature page of the will went overlooked. My client either failed to review the will after the decedent was completed, or otherwise reviewed it yet missed the fact that no signature had been provided. In either case, this simple yet careless oversight completely negated the will, and landed my client in a very unenviable position.
Finally, if you want to minimize your exposure, make an accurate RECORD. That is, take steps to properly record, document, and capture the important details in your cases. This ties in very closely with our first principle, communication. For example, don’t just call your client and tell them that the plaintiff made a settlement offer, memorialize that conversation in a letter, or email. The advent of email as our most prevalent form of business communication has made it very easy to accomplish this, yet it’s astonishing how often people fail to do so. Taking all of 60 seconds to type a quick email to your client could save you a world of trouble down the road. Even something as simple as memorializing the minutiae of your day to day activities in a notepad or memorandum could pay dividends.
I once represented an attorney who’s client’s case was dismissed by the court for failure to provide discovery compliance by a date certain. The client filed suit against the attorney, arguing that it was the attorney’s failures that caused the suit to be dismissed. In his defense, the attorney told me that he had repeatedly asked his client for documents, and continually advised the client of the gravity of the situation, and that the client didn’t provide him with the information as asked. The problem, this attorney claimed, was that this client preferred to conduct all business by phone, and didn’t use email. Therefore, all of the pleas made by the attorney to his client regarding the missing discovery went unrecorded. When I asked him why he didn’t follow up these phone calls with a letter, he stated that he didn’t think it was necessary at the time. Facing a malpractice lawsuit (albeit, one with a happy ending where the plaintiff’s case later fell apart), he admitted that he certainly wouldn’t make that mistake a second time.
Of course, nothing is going to make you bulletproof. Even if you’ve minded your Ps and Qs and kept your house in order, a disgruntled client could certainly drum up a malpractice claim. That said, there’s certainly no reason to make it easier for that to happen. And while every attorney makes mistakes, and winds up with a bad result from time to time, there’s no sense at all inviting more trouble by failing to heed basic, common sense principles, with simple errors simply avoided.
Timothy Gondek is a partner at Lewis Brisbois Bisgaard & Smith.